Alexander v The Queen

IN THE COURT OF REVISED CRIMINAL APPEAL 60432/99

Sheller JA Barr J Greg James J

26 June 2002 Regina v Quoc Vinh TO Judgment 1 Sheller JA: I agree with Barr J. 2 Barr J: The appellant, Quoc Vinh To, appeals against convictions and seeks leave to appeal against sentences entered in the District Court. Following a trial, a jury found him guilty of four counts of sexual intercourse without consent in circumstances of aggravation. In each case the circumstances of aggravation were the appellant's threat to inflict actual bodily harm by means of a knife which he held in his hand. Payne DCJ sentenced him to a total effective sentence of twenty-three years and fixed a minimum term of sixteen years. 3 The first offence was committed on Ms Jenny Hong at Campsie on 11 August 1994 and the second on the same complainant at the same place on 5 September 1994. The third offence was committed on Natasha Barlow at Marrickville on 22 May 1996 and the fourth on Jacinth Bourne at Campsie on 24 December 1996. 4 The first ground of appeal asserts that her Honour erred in admitting evidence of identification of the appellant and, having admitted it, in failing to withdraw it from the jury during the course of the trial. 5 Objection was taken to the receipt of the evidence and defence counsel relied on ss 137 and 138 Evidence Act. Relevantly the sections are as follows - 137. Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 138. Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

6 Evidence taken in a voir dire established that on the evening of the appellant's arrest on 23 May 1997, a number of members of the public went at the request of the police to Campsie Police Station to take part in an identification parade. Police chose the participants by entering hotels and clubs and making their requests there. All members chosen were of Asian appearance. No record was made of their names, addresses, dates of birth or nationalities. The appellant and nine other men formed the identification parade. The complainants Ms Hong and Ms Barlow attended. Ms Bourne was unable to attend but her sister, Cassandra Bourne, who had been present at the time of the attack and who had seen the attacker, attended. A separate parade was held for each identifying witness. In each one the appellant and nine other men stood in a line. The appellant was permitted to choose where in the line he would stand, and he made that choice for each successive parade. A number was placed on the floor in front of each man in the parade. Each identification witness was asked to write down the number of any man she recognised. Mr Tran, an official interpreter, attended to assist the appellant. 7 Detective Sergeant Sato, the officer in charge of the investigation, gave evidence. He had no idea of the names, addresses or dates of birth of those participating. He explained that police instructions told him not to record the names, addresses or dates of birth of participants in identification parades. He also said that it was not the practice to photograph line-ups because it was difficult enough to persuade people to take part in them and would become almost impossible if their names and particulars were recorded or photographs taken. 8 The appellant gave evidence and said that all the men in the identification parade except himself were Korean. He could tell that because of their speech and their appearance. He said that the Korean face is bigger than the Vietnamese face and the bone structure different. He did not tell the police this because he was afraid. However, he did tell his solicitor on the following day. 9 Mr Tran said that there were about ten in the line up including the appellant. He believed that there were some Koreans. He heard them speaking. If he had not heard them speak he would have guessed that they were from northern China or Japan. They looked different from the others. There were to his recollection about seven such men. He could not tell whether there might have been more than seven. Later on he described the number of Koreans as six or seven. The other two or so present with the appellant, he said, had skin that was a little darker, indicating that they were from the south of East Asia. He agreed that it was difficult to differentiate between Chinese-Vietnamese and Vietnamese people. He agreed that in many cases it is difficult for other Asians to make the distinction. He said this, among other things - Q: Only an extremely Mongolian-looking Asian person would stand out, is that right, from the very northernmost part of the Asiatic nations? A: Yes, in general the northern people is bigger there and their skin is also lighter. 10 Ms Hong was Korean. She said that most of the time she could distinguish a Korean from a person of any other nationality just by looking. The facial structure and the size of the eyes of Koreans were different. She thought that there were about three Koreans in the line-up. Asked about the country of origin of the other members of the line-up she said - A: To be honest, I just recognised a couple of the Koreans and when I saw the accused, I sort of didn't look at the other men in the line-up. 11 Later on there were this question and answer - Q: Did you look at every man in the line-up or not? A: Yeah, I did, but I didn't look at them in detail as to determine what nationality they were. 12 Ms Barlow gave evidence. She could not recall the country of origin of any of the participants. The racial derivation or country of origin of the participants seemed varied. No one stood out as being from a particular background. 13 Her Honour gave judgment on the following day. She preferred the evidence Mr Tran to the effect that there were seven Koreans in the parade. Her Honour took the view that this did not reduce the probative value of the evidence. She concluded, for the purposes of s 137, that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant. Counsel had submitted that the identification parade did not accurately represent a compilation of persons similar to the appellant and that the evidence was therefore improperly obtained. Her Honour rejected that submission but held that even if the evidence were regarded as having been improperly obtained she would have admitted it in her discretion. Her Honour citied the relevant topics so arising for consideration under s 138(3). 14 The trial proceeded. During the evidence of Ms Hong it emerged that she knew before she attended the police station that the police had arrested a man. It also appeared that before she went to the police station, Ms Jacinth Bourne received a telephone call in which she was informed that the police had a suspect. There was no renewal of the application to exclude the evidence. 15 It was submitted on appeal that her Honour misapplied the test under s 137 and made no attempt to balance the probative value of the evidence and the danger of unfair prejudice. Having reviewed the evidence, her Honour said this - For the purposes of this judgment I will, as submitted by defence counsel, take the view that the onus is on the Crown to persuade me (that) the evidence is not unduly prejudicial or the probative value of it is not outweighed by the danger of unfair prejudice to the defendant. (Her Honour referred to a text and continued) I have been so persuaded in this case, having considered all of the evidence and the argument. Identification evidence is very relevant evidence. I prefer the evidence of Mr Tran to that of the other witnesses accepting that there was seven Koreans of the nine. This does not to my mind in all the circumstances reduce the probative value of the evidence in any significant way. All of the matters put by defence counsel can be put to the jury. They go to the weight of the evidence. 16 I do not accept the appellant's submissions. It sufficiently appears from the portion of the judgment which I have extracted that her Honour had in mind the test required by s 137 and that her Honour applied it. 17 The next two submissions may be dealt with together. They were that her Honour erred in concluding that the probative value of the evidence was not reduced in any significant way by the fact that six or seven members of the line-up were Koreans and that her Honour made no attempt to assess the danger of unfair prejudice. 18 These submissions are made in the face of her Honour's finding that the presence of the Koreans did not reduce the probative value of the evidence in any way. That finding was based at least partly on the evidence of Mr Tran to the effect that all the men looked similar or only slightly different and of Ms Hong that she noticed only three men that impressed her as being Korean. (Unlike Mr Tran, of course, Ms Hong was not permitted to hear the participants speaking). So even on Mr Tran's evidence, the appellant's entitlement was met, namely a parade of persons of about the same age, height and general appearance as himself: Alexander v The Queen (1981) 145 CLR 395; R v Fischer [2001] NSWCCA 380. 19 Her Honour impliedly rejected the evidence of the appellant that all nine members other than himself were Korean, and that was unsurprising in view of his failure to say so to the independent police officer who interviewed him afterwards. 20 There was no evidence to suggest why the presence of Koreans should have affected the integrity of the identification evidence of Ms Bourne or Ms Barlow or that either was likely to distinguish between Koreans and other Asians including Vietnamese persons. 21 In my view her Honour was entitled on all the evidence to conclude that the probative value of the evidence was not significantly reduced, that there was little or no unfair prejudice likely to flow and that the probative value of the evidence outweighed the danger of any unfair prejudice. 22 The next submission on appeal complained that her Honour did not carry out the balancing process independently for the evidence of each of the three identifying witnesses. 23 In my opinion no error has been shown. As I have said, the only identifying witness who made any distinction at all between Koreans and others was Ms Hong. But the distinction was unimportant in her identification because of her evidence which I have extracted above. Moreover, so generally alike were all the members of the line-up that Ms Hong, lacking the opportunity to hear any of the participants speak, thought that only about three were Korean. Her position, then, was little different from that of Ms Bourne and Ms Barlow, neither of whom appears to have noticed the distinction relied on by the appellant. 24 The next submission on appeal was that her Honour's assessment of unfair prejudice had to take into account the lack of a photographic record or a video record of the identification parade. The implication was that it did not. As I have said, the arguments made by defence counsel were not recorded. Her Honour said that she took them into account. There is no reason to believe that her Honour was not invited to consider such a submission or that her Honour did not take it into account. 25 The next submission relied on s 138 Evidence Act and was to the effect that the police failed to take every precaution reasonably available to guard against a miscarriage of justice and that her Honour was therefore wrong in concluding that the evidence was not improperly obtained. Reference was made to Alexander v The Queen. 26 It was pointed out that in February 1998 the New South Wales Commissioner for Police published a booklet entitled "Procedures for the Evidence Act", containing the following instruction - If a video camera is available, tape the entire parade. If not, take a photograph depicting all participants, including the suspect. 27 In my opinion this document does not assist the appellant's case. It shows that police procedures underwent a significant change after the identification parade in the present case. Detective Sergeant Sato's unchallenged evidence was to the effect that when the identification parade was held there were what were considered to be good reasons why it was not the practice to photograph participants in an identification parade and why instructions forbade the recording of personal particulars of participants. Now things have changed, and where possible there will be a photographic record which will enable accused persons to put before trial courts a more accurate idea of how things appeared when they were identified at an identification parade. If the fears of the police are realised, of course, fewer members of the public will be prepared to take part in such parades, to the disadvantage of other accused persons. Here the accused had the benefit of an identification parade he might not have had if the 1998 instructions had applied, and was thereby protected from the risks of less reliable methods of identification to which police officers might then have resorted. 28 All the appellant has demonstrated is that the evidence in his case was obtained under a regime different from that which now apparently obtains. That does not demonstrate to my mind that what happened was improper. 29 Finally it was submitted that the evidence of Ms Hong and Ms Bourne that they were told that there would be a suspect in the line-up required her Honour to reconsider her decision to admit the evidence under ss 137 and 138. It was also submitted that the evidence might offend s 114(2) Evidence Act because influence might intentionally have been brought to bear on a witness to identify the appellant. S 114(2) is in the following terms - 114. Exclusion of visual identification evidence (2) Visual identification evidence adduced by the prosecutor is not admissible unless: (a) an identification parade that included the defendant was held before the identification was made, or (b) it would not have been reasonable to have held such a parade, or (c) the defendant refused to take part in such a parade, and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

30 It seems obvious that even without being told, any witness attending an identification parade would expect that one of the participants would be a person the police suspected to be the offender. See R v North, Court of Criminal Appeal, New South Wales 4 December 1998 unreported in the judgment of Mason P at 9. In my view, to tell a potential identifying witness such a thing would not affect the expectation of that person. Accordingly, I do not think that the expectation of Ms Hong or Ms Bourne would have been materially different from that of Ms Barlow, who was not told any such thing. 31 Counsel informed this Court that the police did not here follow the usual practice of informing proposed identification witnesses that the offender himself was not necessarily a participant in the line-up. Nothing was put before the Court to demonstrate that there is such a practice and no authority was cited requiring such a practice to be followed. The judgment of McHugh J in Festa v The Queen [2001] HCA 72 at 48-52 suggests that there may not be such a practice. 32 In my opinion her Honour was not required by the emerging evidence to reconsider her earlier decision. Defence counsel obviously took the same view, because no application to that effect was made. I would refuse leave to appeal on this basis. In my opinion the first ground of appeal has not been made good. 33 The second ground of appeal complains that her Honour erred in admitting evidence of DNA analysis. Semen was recovered from Ms Hong after the second attack on her and she swore that her attacker in each instance was the same man. Semen was recovered from Ms Bourne and Ms Barlow. DNA was extracted from all samples taken and compared with DNA extracted from the appellant's blood. The appellant could not be excluded. The Crown wished to adduce evidence about the statistical rate of occurrence of the relevant DNA profile. Defence counsel objected and a voir dire was held. The Crown called a forensic biologist, Mr Goetz, to give evidence. The defence had in court Dr McDonald, a forensic biologist. There was this exchange - HER HONOUR: Can you (sic) assume there has been no agreement? CROWN PROSECUTOR: Your Honour, both parties have talked to Mr Goetz before Court. Mr Wilkinson asks for the opportunity to cross-examine Mr Goetz on a couple of issues.

HER HONOUR: What is your objection to the evidence? WILKINSON: To the statistical data that's been used. There will be cross-examination of Mr Goetz in respect to certain segments of the DNA profile and the data from which he obtained it. Now, your Honour will have to make a ruling in accordance with the evidence that he gives as to whether or not the objection is maintained.

HER HONOUR: So you are not objecting at this point? WILKINSON: I'm objecting to the statistical data but your Honour, having spoken with both my expert and in conferences with Mr Goetz the issue is very narrow and it's a matter in my view -- HER HONOUR: Can we say you are not taking the objection until you hear Mr Goetz's evidence?

WILKINSON: I object to it at this present time. HER HONOUR: You object to the statistical weighting to the evidence?

WILKINSON: Yes. HER HONOUR: So you are Madam Crown leading evidence to support the statistical validity of the data basis used?

CROWN PROSECUTOR: That's right, your Honour. HER HONOUR: So there has been no agreement obviously because you are objecting to it. WILKINSON: Yes, I am, but it's in relation to a very narrow issue. It's a matter that I'm sure will be clarified this afternoon. 34 When Mr Goetz made his initial report he produced figures drawn from an Australian database. When he was told at trial that the offender was said to be Asian he consulted different databases and used them to produce statistical results. He produced a chart showing the rate of occurrence in various Asian population databases of results identical to those achieved in his tests. He concluded, by reference to the chart, that the figures differed from those taken from the Australian database but that there was not a great deal of difference statistically in the rates of occurrence of identical results between the different Asian databases set out in the chart. 35 Discussion followed, during which her Honour asked Mr Goetz about the sizes of the Asian databases and a view expressed by Hunt CJ at CL in R v Milat (1996) 87 A Crim R 446 that a database of at least two hundred is required for statistical significance. Reference was made to his Honour's remarks about confidence limits and Mr Goetz gave some illustrations to show how confidence limits are applied. He went on to say that there was an alternative approach, which was "probably the now recommended approach which suits and in some respects supplants the confidence limit approach". That was a kinship co-efficient factor known as FST, which took into account "population size, dependency between individuals and so forth". He said that the National Research Council of the United States stated that in most populations for which there is no database, so that one had to refer to other databases of similar populations, it was appropriate to use an FST factor of 1%, but that if the population is quite dissimilar then about 3%. 36 He explained that in drawing conclusions from the databases he had used he had taken two conservative steps. The first was to apply an FST factor of 3%. The other was never to use the results of testing at more that one locus on any chromosome in case there should be any dependency between loci on the same chromosome. (No such dependency has been shown to exist by reference to Australian databases, which routinely catalogue results of tests of loci on the same chromosome). 37 In order to produce his results, Mr Goetz used two Chinese databases, one of the results of one hundred and five tests on loci known as DQá and the polymarkers (6 loci) and the other of the results of one hundred and twenty-one tests on four Short Tandem Repeat loci. Having taken the two conservative steps I have mentioned, Mr Goetz concluded that the chances of a random match between two pieces of DNA having the profile of all the samples tested was 1 in 1.1 million, according to the Chinese databases. 38 Mr Goetz was asked which confidence limit he had applied and said that he had not applied any and that that process was totally different from the application of the 3% FST factor. He said that one could not do both. He went on to say, however, that if he applied a 95% confidence limit to the raw figures drawn from the two databases he had used, the chances of a random match would reduce from 1 in 6.9 million to a range between 1 in 2.5 million and 1 in 19 million. 39 Mr Goetz was of the opinion that the databases he used were of sufficient statistical validity to warrant the use of the evidence. The chart he produced showed rates of frequency of occurrence in other Asian populations of DNA profiles identical to those produced on test. Those populations were Korean (2), Japanese (4), South East Asian, Asian (2), Thai and US Asian. They showed that the rate of occurrence of identical results was not statistically significantly different from the rate in the databases used by Mr Goetz. 40 Mr Goetz was cross-examined about database sizes and was reminded that in R v Milat he had said that the minimum requisite size was two hundred samples. He said that scientific opinion had changed since he gave that evidence and that many workers now considered one hundred to be adequate. He was cross-examined at length on topics not relevant to this ground of appeal and reiterated that his application of a 3% FST factor was more conservative than the application of a 95% confidence limit. 41 The defence did not call Dr McDonald to give evidence. In a written judgment her Honour made an extensive review of the evidence I have summarised and decided to admit the evidence objected to. 42 The first submission on appeal was that the use by Mr Goetz of Chinese databases failed to comply with what was said by Hunt CJ at CL in R v Pantoja (1996) 88 A Crim R 554. In that appeal the complaint was that the appellant was of a peculiar racial extraction and that the evidence did not establish whether the database used contained results of tests of DNA of persons of that extraction. His Honour said this - Much was also made of this issue on the hearing of the appeal, but to my mind the submissions proceeded upon the wrong assumption that it was the appellant's race that was important. That is wrong because it must be the offender's race, not the suspect's race, which dictates the validity of the database. 43 In the present appeal Ms Hong, Ms Barlow, Ms Jacinth Bourne and Ms Cassandra Bourne all described the attacker as Asian. Ms Hong said that he had a Vietnamese accent. It was submitted that since nobody described the attacker as being Chinese it was inappropriate to use a Chinese database. That submission implied that the only valid database would have been an Asian database. Counsel made no attempt to explain what such an Asian database might comprise. There was no attempt to explain precisely what the term "Asian" meant. 44 Her Honour's duty was to enquire whether the results produced by the databases used were likely to be reliable. Her Honour was obliged to have in mind what Hunt CJ at CL said in the passage which I have quoted, but I do not understand his Honour to have been laying down any rule of law. To say that the offender's race dictates the validity of the database is one thing. It is quite another to say that reliable evidence can never be produced by the use of a database which cannot precisely be described as of or including the offender's race. It would not be suggested, I think, that statistical evidence of the kind objected to would be altogether inadmissible if the race of the offender were not known. 45 Insofar as it relies on what his Honour said, the appellant's submission proceeds on the misunderstanding that the description "Asian" refers to a particular race rather than merely to a generally appearance. The description is imprecise. Asia may be regard for these purposes simply as a part of the world and Asian as denoting a person appearing to come from that part of the world. It might also denote a person appearing to belong to any of the nations of Asia. 46 The submission ignores the evidence of Mr Goetz to the effect that the test results revealed in the several databases he examined were statistically significantly similar. It also ignores the fact that the Chinese race is the most numerous Asian race. 47 In my opinion her Honour was entitled to rely upon the evidence of Mr Goetz as to the statistical similarity of results produced by the several databases he considered. Her Honour was entitled to come to the view that she did, based upon that evidence, that the statistical evidence had sufficient probative value. 48 The trial out of which this appeal arises took place in April and May 1998. Some eighteen months later this appellant was tried for sexual offences committed on other complainants. Mr Goetz gave evidence at that trial. The DNA tests he carried out were done according to a different system, superseding the methods used in relation to the present trial. Different databases were used. An attempt was made on appeal to call in aid some evidence given by Mr Goetz at the second trial to the effect that a fairer database to use was an Asian database. 49 It seems to me that there are several reasons why it was impermissible for counsel for the appellant to make such a submission. First, the evidence about the appropriateness of the use of one or other of several databases must have been different. The complainants were different and presumably their reports were different from those made in the present case. Secondly, Mr Goetz was using different methods in a different system. There is no reason to suppose that the databases he used had any relation to those used in the present case. 50 Thirdly, and most importantly, it seems to me that it is impermissible for counsel, as though relying on fresh evidence, to impugn her Honour's decision by reference to evidence which was not before her. This appeal is based upon what is said to have been her Honour's error in admitting the evidence. In attacking her Honour's decision counsel is necessarily restricted to the evidence that was before her Honour, for she cannot be said to have erred by reference to evidence that was not put before her. 51 The next two submissions may be dealt with together. The first was that the evidence should have not have been received unless the 95% confidence limit had been applied. Reference was made to the judgment of Hunt CJ at CL in R v Milat. The second was that it was necessary to apply the restriction provided by the confidence limit in addition to that provided by the application of the FST factor. The two approaches, it was submitted, were not alternative. 52 The submissions ignore the unchallenged evidence of Mr Goetz. There appears no reason why her Honour was not entitled to accept at face value his evidence that it was more conservative to apply the FST factor than the confidence limits suggested and that the two were alternatives. It was never put by defence counsel that Mr Goetz's approach was not sound. 53 In support of this submission also, counsel attempted to argue by reference to evidence given by Mr Goetz at the second trial. It was said that he there expressed the view now contended for, namely that the two approaches are not alternative and that both can and should be applied in circumstances like those existing in the present case. 54 As before, the submission must be rejected. Whatever Mr Goetz may have said in another trial at another time dealing with other circumstances and other systems is here unexaminable. It could never be said that her Honour erred by reference to any such evidence, which could never have been put before her. 55 The final submission drew attention to the differences between the figures given by Mr Goetz as arising from Australian databases and from Chinese databases. No complaint is made about the directions given to the jury that they should not approach the matter upon any strictly mathematical basis, but it was submitted that the two differing results must have been misleading and confusing to the jury. 56 How the evidence must have misled or confused was not explained, and counsel added nothing orally to a short and formal written submission on this topic. 57 In my opinion there is no substance in this submission. The second ground of appeal also fails. I would dismiss the appeal. 58 The maximum sentence for each offence is twenty years' imprisonment. On the first and third counts her Honour sentenced the appellant to concurrent fixed terms of six years and nine months' imprisonment, on the fourth count to a wholly cumulative fixed term of seven years three months and on the second count to a wholly cumulative term of nine years, comprising a minimum term of two years and an additional term of seven years. The resulting effective sentence comprised a minimum term of sixteen years and an additional term of seven years. 59 Her Honour arrived at those sentences by beginning with these sentences and reducing them to reflect the multiplicity of sentences and the principle of totality - Count One: ten years with a minimum term of six years nine months;

Count Two: twelve years with a minimum term of eight months; Count Three: ten years with a minimum term of six years nine months; and Count Four: eleven years with a minimum term of seven years three months. 60 It was not submitted that the individual sentences fell outside the range of her Honour's sentencing discretion. What was submitted was that the total term exceeded what was necessary to reflect the totality of criminality and that the ultimate sentence was crushing. 61 Counsel acknowledged that her Honour lacked the power to impose partially concurrent and partially consecutive sentences (see now s 55 Crimes (Sentencing Procedure) Act) with the effect that it was practically impossible to comply with the directions of the High Court of Australia in Pearce v The Queen [1998] HCA 57 and Mill v The Queen (1988) 166 CLR 59. It was formally submitted that in the circumstances the only appropriate way to deal with the problem was to impose wholly concurrent sentences for most if not all of the offences. 62 Ultimately, as counsel acknowledged on appeal, the matter is one of impression. My impression is that although the total effective sentence was long it was no longer than what was permitted to reflect the criminality of the appellant. I do not think that her Honour fell into error. I would grant leave to appeal but would dismiss the appeal. 63 Greg James J: I agree with Barr J. **********

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